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2006 Supreme(Kar) 366
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
R. GURURAJAN, J.
Smt. EVULIN D'SOUZA - Petitioner
versus
THE AUTHORISED OFFICER AND ASSISTANT COMMISSIONER, MANGALORE AND OTHERS - Respondents
Writ Petition No. 26809 of 2005
Decided on 21st April, 2006
Sri KM. Nataraj, Advocate for Petitioner;
Sri Ramesh Anneppanavar, High Court Government Pleader for Respondents-1 and 3;
Sri B.V. Krishna, Advocate for Respondent-2.
Headnote:Appeal - Pre-requirement for admission of - Land reforms matter -Appeal against order of Land Tribunal -Office raised an objection that RTC should be made available before admission -Whether sustainable.
Constitution of India -Articles 226 and 227 -Alternate remedy -Appeal to Appellate Tribunal against order of Land Tribunal -Office raised an objection that, RTC should be made available before admission of appeal -Appellant has an alternate remedy of filing a Miscellaneous Petition under Section 28-A of Land Reforms Act -If matter had been disposed of on merits -Since order was on account of non-compliance of office objection, Section 28-A is inapplicable -Order of rejection of appeal set aside.
Karnataka Appellate Tribunal Regulations, 1979 - Regulation 5 -Requirement under - Land reforms matter -Appeal against order of Land Tribunal -Office raised an objection that RTC should be made available before admission -Whether sustainable. [R. Gururajan, J.] - From a reading of the regulations what is clear to me is that there is no requirement of production of RTC at the time of admission in terms of the Regulations. Therefore as rightly argued by the learned counsel for the petitioner, the insistence of RTC at the time of admission is unsustainable in law in terms of the Regulations. Whenever first appeals are filed, registry normally calls for records are not filed by a party then that party would suffer the consequence in terms of the Act and the Regulations framed thereunder. The insistence on RTC at the time of scrutiny is totally unknown to the first appeal procedure. At the same time, this Court also must say that in the event of the appeal being posted before the Court and in the event of the appellate authority being of the opinion that the RTC records are necessary for the purpose of consideration in the event of the order being bald or vague, then the Court can direct the parties to produce the same for the purpose of consideration of the appeal on merits. In fact even this Court while entertaining a writ petition or appeal sometimes seek such documents for the satisfaction of the Court. Satisfaction of the Court for the consideration of appeal is different from the Registry insisting as a mandatory requirement for the purpose of posting it before the Court. Calling of the document by the Court for considering is a judicial act where as the insistence on production of RTC by the Registry is only a ministerial act. The ministerial order must have the backing of Regulations in the matter of appeal proceedings.
Karnataka Land Reforms Act - Section 28-A- Appeal against order of Land Tribunal -Office raised an objection that RTC should be made available before admission - Remedy against. [R. Gururajan, J.] - It is argued by the state that the petitioner has the remedy of filling a Miscellaneous petition under Sec.28-A of Act and therefore the Court need not interfere in the present circumstances. Section 28-A is available only in the event of a petition being dismissed on merits. The impugned order is on account of non- compliances of office objections. Sec. 28-A is hence inapplicable in such circumstances. In the light of above discussion, the dismissal of appeal on the basis of office objections by the tribunal is to be set aside by this Court.
Karnataka Land Revenue Act, - Section 127 -Need of production of RTC in appeal - Appeal to Appellate Tribunal against order of Land Tribunal -Office raised an objection that, RTC should be made available before admission of appeal -Objection not sustainable -Such an appeal can be admitted without RTC.
Petitioner is before this Court challenging the order dated 12-5-2005 passed in Appeal No. 20 of 2005.
2. Petitioner filed an application in Form 7-A’ under the Karnataka Land Reforms Act, 1961 seeking occupancy rights. The said application came to be rejected in terms of an order dated 2-12-2001. Aggrieved by the said order, petitioner filed an appeal before the Karnataka Appellate Tribunal, in Appeal No. 20 of 2005. The Tribunal has chosen to dismiss the appeal in terms of an order dated 12-5-2005. This order is challenged in this writ petition.
3. Petitioner would say that the appeal was posted for admission on 12-1-2005. Office raised objections in the matter. Clarification was sought for by the office. Office wanted the RTC record to be made available before admission. Matter was posted before the Court for compliance of office objections on 11-2-2005. Learned Counsel for the petitioner required the petitioner to send the RTC of the schedule land. Petitioner sent an intimation that it is difficult to get the copy of the same. In the meanwhile, the matter was posted to 12-5-2005. The Tribunal dismissed the appeal for non-prosecution. According to the petitioner, the dismissal is unsustainable in law. There is no legal requirement to produce the RTC before admission in terms of the regulations. Petitioner with these facts wants the order to be recalled.
4. Emergent notice was issued. Thereafter the matter was posted on 9-3-2006. Parties were heard for sometime and thereafter this Court wanted an affidavit to be filed by the Registrar with regard to the insistence on RTC for the purpose of admission of appeal by the Tribunal.
5. An affidavit was filed by way of objection statement stating that since this requirement is essential to be established, the Karnataka Appellate Tribunal normally insists on RTC to be furnished at the time of admission; that this is not the case where the case has not been placed before the concerned Bench on the ground that the RTC was not produced before the office of the Registrar of Karnataka Appellate Tribunal; that this subtle distinction is being made in this case, since the production of the RTC is considered as a necessary pre-requisite to the case; that it is not to be construed as a preliminary requirement, before the case is placed before the Bench for hearing. It is further stated that from 12-1-2005 the case on hand has been posted before the Court on several dates and on 12-5-2005 again the Advocate was absent in view of this situation the Bench was compelled to pass the impugned order; that there exists a remedy of appeal to a party in such cases. It is further stated that there exists a circular where the Tribunal normally insists the production of various documents including RTC in examining the cases, since these are land related matters. The said circular is filed along with the objection statement.
6. Heard the learned Counsels for the parties.
7. Learned Counsel for the petitioner would argue that Karnataka Appellate Tribunal Regulations does not require production of RTC at the time of admission and any insistence on such production is legally impermissible. He would say that the litigants and the lawyers are facing difficulties in the matter of presentation of appeal before the Tribunal. He would say that the registry of the Tribunal is not posting the appeal immediately despite there being urgency in the matter.
Learned Counsel complains that there is no requirement of payment of process fee at the time of admission, still lawyers and litigants are made to pay the process fee by cash and in the event of dismissal of appeal at the admission stage, no refund is made to the litigant. He would also elaborate by saying that even if the litigant places all the documents for the purpose of admission before notice there are instances of the respondent getting not the copies but only the notice from the Tribunal.
Even with regard to copy application, he would further say that it would ta
